Rep. Devin Nunes’ lawsuit against Twitter generated headlines and social media buzz, but it’s far less certain it will produce the $250 million payday he’s seeking.
The U.S. Constitution, decades of case law from state and federal courts, a 1996 statute passed by a Republican-controlled Congress, and Nunes’ own position as a lawmaker all pose formidable hurdles, according to legal scholars and lawmakers.
Twitter has “two separate layers of protections” against the defamation claims at the heart of Nunes’ lawsuit, said Jane Bambauer, a law professor at the University of Arizona who specializes in data-gathering and privacy issues. First, a 1996 law generally absolves Internet sites of responsibility for content posted by their users, a move intended to foster development of a then-developing technology.
And second, decades of court rulings have made it particularly difficult for public officials such as members of Congress to win defamation claims.
Despite these obstacles, Nunes’ suit is likely to further roil controversy over the role of social media in political debate and fuel Republican claims that tech giants in liberal-leaning Silicon Valley are discriminating against conservative viewpoints. Both House and Senate committees held hearings on the matter when Republicans controlled Congress, which Democrats dismissed as farcical.
The lawsuit, filed Tuesday in Henrico County, Va., Superior Court, paints Nunes as the victim of insults and false charges spread on Twitter that cost him significant support in his California district in the 2018 election, when Democrats regained a majority in the House of Representatives. Instead of his usual sweeping majorities, the suit says, Nunes garnered only 53 percent of votes cast.
Additionally, the chamber’s power shift cost Nunes his role as chairman of the House Intelligence Committee, a position he was using to investigate corruption in Democratic presidential contender Hillary Clinton’s losing campaign.
[Related: Devin Nunes on Twitter lawsuit: ‘This is the first of many’]
Trump, whom Nunes has supported, repeatedly referred to Clinton as “Crooked Hillary” on Twitter and at campaign rallies. His GOP allies have blamed her campaign for a dossier of salacious claims about the president that was turned over to the FBI, which helped fuel an investigation into whether Russia sought to sway the election in the real estate mogul’s favor.
The congressman claimed in his lawsuit that Twitter downplayed his posts and promoted those of his critics to “influence the outcome of the 2018 congressional elections.” In addition to Twitter, the suit named Republican strategist Liz Mair and unidentified platform users who went by the Twitter handles of “Devin Nunes’ Mom” and “Devin Nunes’ Cow,” a reference to his work as a cattle farmer.
Nunes’ attorney, Steven Biss, didn’t return a message seeking comment on Tuesday, and a spokesman for Twitter declined to comment. Mair, who declined to address specific claims, said she would respond to the charges in a court filing.
“Suffice it to say that I have a very different view on the applicable law, including the First Amendment, than Rep. Nunes,” she said. “I also believe that like every member of Congress, Rep. Nunes has sworn an oath to support and defend the U.S. Constitution, including the Bill of Rights and the First Amendment, and that as a public official, it is entirely proper and correct that his actions, political committee expenditures, voting record and conduct be subject to public scrutiny and debate. That goes to the very core of what the framers intended the First Amendment to protect.”
Nunes, a member of Trump’s transition team, became a lightning rod for controversy during the first two years of the president’s term, much of which was referenced on Twitter.
In late 2017, he was cleared by the House Ethics Committee of allegations that he mishandled classified information when he said the communications of a Trump aide were monitored by U.S. intelligence agencies. Early the next year, he drew fire from Democrats over the release of a memo he authored claiming the FBI abused the Foreign Intelligence Surveillance Act to spy on Trump’s team as he was preparing to take office.
[Also read: McCabe, Rosenstein wanted Nunes barred from meetings with congressional leaders]
Nunes, however, said in his lawsuit that his career in Congress has been marked by his “honesty, integrity and ethics.” Citing tweets that he says falsely linked him to a cocaine-fueled party on a yacht and accused him of serving as a lackey to Trump and Putin while ignoring his constituents, he says he “endured an orchestrated defamation campaign of stunning breadth and scope, one that no human being should ever have to bear and suffer.”
He said Twitter acted as a “vehicle of opposition research” and asked the Virginia court to order the company to suspend accounts held by Mair and the other two users and remove any posts containing “false and defamatory statements” about him. He also accused the San Francisco-based firm of quashing content with which it disagrees generally and censoring conservative viewpoints in particular.
While Twitter has denied such behavior, it wouldn’t be illegal. The U.S. Constitution bars government from interfering with freedom of speech, but it contains no comparable prohibitions on businesses or individuals doing so, a point Democratic lawmakers made repeatedly during hearings on anti-conservative bias in social media last year.
“Twitter will always default to free and open exchange,” CEO Jack Dorsey told the House Energy and Commerce Committee in September. “We believe it’s dangerous to ask Twitter to regulate opinions or to be the arbiter of truth. We’d rather be judged by the impartiality of outcomes and criticized when we fail this principle.”
As for Nunes’ defamation claim, landmark Supreme Court rulings such as New York Times vs Sullivan, in 1964, set a high bar for such claims by public officials, even beyond the baseline principle in U.S. law that plaintiffs must prove the statements about which they’re complaining are false, Bambauer noted. In other countries, including the United Kingdom, the burden of proof rests with defendants, who must prove the statements they made were true.
In Sullivan, the high court said public officials must prove that a defamatory statement was made with “actual malice,” which justices defined as knowledge that the statement was false or reckless disregard as to whether it was true.
That and other well-known cases “make clear that in order to be libelous, the author needs to be making a statement of fact that readers understand to be factual and not satirical,” Bambauer said. “The author has to know that this is false and be willing to say it anyway.”
While Nunes also took issue with Twitter memes such as the one included in his lawsuit showing sketches of himself, Trump, and Russian President Vladimir Putin in a sexually suggestive position, the Supreme Court said in a 1988 ruling that parodies don’t constitute libel.
In Hustler v. Falwell, the court unanimously tossed out damages of $150,000 to televangelist Jerry Falwell over a November 1983 magazine piece that depicted him describing a sexual encounter with his mother in an outhouse.
“Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate,” then-Chief Justice William Rehnquist wrote for the majority. “The caricature of [Falwell] and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard.”
